Does the CJI have the authority to pass an administrative order to refer a matter to a five-judge bench? The question posed by Kapil Sibal was central to the petition being "dismissed as withdrawn" by the Supreme Court.

A Constitution Bench last month ruled that CJI was the master of the roster. (File)

Even as two Congress MPs on Tuesday withdrew their plea in the Supreme Court challenging Rajya Sabha chairman Venkaiah Naidu’s rejection of the impeachment notice against Chief Justice of India Dipak Misra by Rajya Sabha Chairman M Venkaiah Naidu, a fresh controversy was created: Does the CJI have the authority to pass an administrative order to refer a matter to a five-judge bench? The question posed by senior advocate and Congress leader Kapil Sibal was central to the petition being “dismissed as withdrawn” by the Supreme Court.

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Here are five reasons why the Congress said it withdrew its plea from the SC

1) The first point that was flagged by Kapil Sibal, who represented Congress MPs Partap Singh Bajwa and Amee Harshadyay Yajnik in the Supreme Court, was on the setting up of the constitution bench, including who passed the order for setting up the five-judge bench to hear the matter. “We filed a petition in Supreme Court (challenging Vice President Naidu’s dismissal of impeachment motion against CJI) on Monday and it was to be heard today. But we were informed last evening that our petition will be heard by 5 judges. Who gave these orders? What were the orders?” Sibal asked.

2) Sibal further said the matter was listed before the five-judge bench through an administrative order and the CJI could not pass such orders in this matter. He said Supreme Court rules do not allow the Chief Justice to pass an administrative order to refer a matter to a five-judge bench on the ground that a “substantial question of law as to the interpretation of the Constitution arises in the case”.

3) Thirdly, the Congress leader sought a copy of the order on setting up of the bench, saying they intended to challenge it but was denied. “If such an order has been passed by the Chief Justice, although the petition pertains to his own impeachment, then we should be given a copy of the order, as we are entitled to it, so that we can study it,” Sibal later said at a press conference.

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4) The next question that Sibal flagged before the Constitution bench was that despite CJI being the “master of roster”, whether that power was untrammelled required to be decided. “We have no doubt CJI is master of roster. We are not challenging that. But is that power untrammelled? Is it subject to any guidelines?”, asked Sibal.

5) Sibal then brought up the manner of listing of the CJI impeachment petition. He asserted that this might be the first instance of a matter going before a Constitution Bench by way of an administrative order. “This is the first time a matter is referred to Constitution Bench by an administrative order. All such orders in the past have been judicial orders. The matter is not numbered, listed and suddenly a Constitution Bench is formed. Is this the way?”, he said.